India: Treat For Tennis Fans – Sharapova Ban Reduced

The Court of Arbitration for Sports
("CAS") has finally given its arbitral
award ("CAS Award") in the dispute
between Ms. Maria Sharapova and the International Tennis Federation
("ITF") wherein Sharapova had challenged
the 2 year ban imposed by the Independent Tribunal appointed by the
ITF ("Tribunal") in its decision dated
June 6, 2016 (Decision) (which has been analysed
in detail in our earlier article circulated on July 4, 2016, also
available at http://www.mondaq.com/india/x/510020/Sport/Ban+On+Sharapova).
The ban was imposed on Sharapova for committing an anti-doping rule
violation under article 2.1 of the Tennis Anti-Doping Programme
2016 ("TADP").

Brief Facts and Arguments Presented in front of CAS Panel:

During the proceedings before the CAS, Sharapova after
summarizing her personal and sporting history, underlined that she
has throughout her career, maintained an immaculate disciplinary
record and would never deliberately use prohibited substances and
be in violation of the anti-doping rules. During her submissions,
Sharapova while referring to the provisions of TADP prescribing
consequences for violation of anti-doping rules, primarily referred
to Article 10.5 of TADP which allows for a reduction in the penalty
on the basis of the principle "No Significance Fault or
Negligence". As per the CAS Award, during the
proceedings, Sharapova, inter alia:

accepted that she bears some degree
of fault and therefore does not plead a defence of "No
Fault or Negligence";

agreed to disqualification of her
results at the 2016 Australian Open and did not challenge the
Decision in this regard;

confirmed that the lack of
intentionality (in committing the violation for purposes of article
10.2.2 of the TADP) was acknowledged by the Tribunal and therefore
the sanction should be 2 years of ineligibility;

emphasized that CAS has discretion to
reduce the period of ineligibility to 1 year upon establishment of
the principle "No Significant Fault or
Negligence"; and

requested the CAS panel to exercise
its discretion to reduce the ineligibility to a shorter period,
consistent with the principle of proportionality.

Sharapova further described the extent and effectiveness of the
system she had in place to ensure anti-doping compliance and
underlined that "athletes are permitted to delegate
elements of their anti-doping obligations. If a mistake later
arises, the fault to be assessed is not that made by the delegate
but the fault made by the athlete in his/her choice".

In light of the above statement, it was deliberated that
"Sharapova cannot be faulted for relying on the services
of one of the largestbest resourced sports managements
firms and of Mr Eisenbud, who had advised her since she was 11
years old, had performed thorough anti-doping checks and assistance
for her over several years with diligence and urgency, and
understood better than anybody the catastrophic consequences of a
positive test."

Sharapova argued that the World Anti-Doping Agency
("WADA") was aware that Meldonium was
widely known under the name of 'Mildronate' and a large
number of athletes use 'Mildronate' but still failed to
mention the name 'Mildronate' on the 2016 Prohibited List
and to issue specific warnings in this regard. Sharapova, thus,
contended that her error, to an extent, is also attributable to
WADA's failure and therefore, under the circumstances, she met
the the criteria of "No Significant Fault or
Negligence".

The ITF had submitted that "this case has exposed the
failure of the Appellant to take responsibility for discharging her
anti-doping responsibilities herself (in particular, checking
whether her medication contained any prohibited substances).
Instead [she] delegated the job to her (hopelessly unqualified)
manager, without giving him any proper instructions or procedures,
or doing anything to supervise or control his work or to check that
what he had done was sufficient to ensure she would not fall foul
of the anti-doping rules. In such circumstances, it was hardly
surprising that this arrangement failed completely, causing her to
test positive in January 2016 for a drug, meldonium, that she had
been taking for a long time but that had just been put onto the
Prohibited List. In such circumstances, the rules and the constant
CAS jurisprudence are clear: against the starting-point that she
must use 'utmost caution' to ensure that no prohibited
substance enters her system, the Appellant's failure to
delegate her responsibilities to a properly qualified person, to
provide proper instructions, to lay down proper procedures, and to
supervise that person's compliance with those procedures, make
her significantly negligent, and therefore the Independent Tribunal
"was right not to give her any reduction from the two-year ban
proscribed in the Code and the TADP".

After hearing both the parties, following issues were to be
examined and decided upon by the CAS panel:

What is the player's level of
fault and more specifically, did the player commit the anti-doping
rule violation with "No Significance Fault or
Negligence"?

If so, what is the proper sanction
for period of ineligibility for the player?

Looking into the facts of the case and hearing both the parties,
the CAS panel opined that:

Sharapova chose to rely on Mr.
Eisenbud and his organization for performance of all anti-doping
related matters, which choice was found to be reasonable by CAS
panel. However, Sharapova did not establish any procedure to
supervise and control the actions performed by Mr. Eisenbud while
discharging the task he was entrusted to perform nor was there any
procedure for reporting or verification to ensure actual discharge
of duties by Mr. Eisenbud; and

Sharapova had reduced perception of
the risk being incurred while using 'Mildronate' due to
number of reasons which, inter alia, included that
'Mildronate' was initially consumed by Sharapova under the
supervision and prescription of Dr. Skalny (post verification of
the substance from ITF) and the same was consumed for medical
reasons and not as a performance enhancing drug.

Final Award:

Sharapova's claim to the principle of "No
Significant Fault or Negligence" was accepted by CAS
panel. For the purposes of period of ineligibility, the CAS panel
noted that Sharapova does bear some degree of fault which prevents
reduction of the period of ineligibility to the minimum prescribed
period under the TADP. CAS panel thus decided that an
ineligibility period of 15 months is
appropriate to the degree of fault attributable to Sharapova.

Effects of the Award:

Post the CAS Award, Sharapova has made a public statement
claiming that October 4, 2016 has been one of her happiest days and
is planning a strong return to the tennis circuit in 2017.

2016 has arguably been one of the historic years in women
tennis, during which the game saw two new first time grand slam
champions [Angelique Kerber winning the Australian Open and US Open
(eventually gaining number 1 rank) and Garbine Muguruza winning the
French Open] and Monica Puig winning the Olympic gold medal.

Sharapova, having won all 4 grand slams at least once, and
settling for silver at the London Olympics in 2012, would have been
eagerly looking forward to lay her hands on gold in Rio Olympics in
2016. Thus, the ban imposed on Sharapova definitely was a great
setback for Sharapova in her tennis career and came possibly at the
most dreaded time, as it took away the opportunity of participating
in Rio Olympics.

However, the CAS Award has come as a big relief and the reduced
period of ineligibility 15 months is deemed to be commencing from
January 26, 2016 till midnight of April 25, 2017. This effectively
means that Sharapova will be missing out on the hard court season
of tennis tournaments in beginning of 2017 and her first tennis
tournament will be the clay court tournament beginning the week of
May 1, 2017 in Prague, Czech Republic or in Rabat, Morocco.

This also means that for second consecutive year Sharapova will
be missing out on the opportunity of participating in the Stuttgart
Open by 2 days as the tournament is scheduled for the week of April
24, 2017. Stuttgart Open and has arguably been one of
Sharapova's most preferred clay court tournaments where she won
for 3 (three) consecutive years from 2012 to 2014.

At the time of her return, Sharapova will have no ranking points
and will be dependent on wild cards for her comeback tournaments as
she has not had a chance of defending her ranking points for any of
the tournaments in 2016. Sharapova will have a chance of
participating in maximum 4 tournaments to play some competitive
tennis, gain her form back and also gain some ranking points before
the French Open, 2017 (scheduled to commence on May 29, 2017). The
women singles draw of the French Open, 2017 will be an interesting
proposition as Sharapova will most likely be going into the draw as
an unseeded player. Sharapova, in all probabilities, would be
looking to climb the rankings as early as possible and go into
Wimbledon (being one of her favourite tournaments) as a seeded
player. Sharapova on the centre court would be a sight for sore
eyes, for she was missing in action at the 2016 Wimbledon
Championships.

Another noteworthy proposition is that the timing of
Sharapova's return to professional tennis is the beginning of
the clay court season which is not the most preferred surface for
Sharapova, even though during her career she has won 12 clay court
tournaments which includes French Open in 2012 and 2014.

Sharapova's return in May, 2017 will be eagerly awaited by
the tennis fraternity and fans across the globe. The 15-month break
from tennis although quite stressful from the player's
perspective, may prove to be a blessing in disguise for Sharapova,
as the rest for her muscles and body during this period may
eventually help her prolong her tennis career. Sharapova will
definitely be looking for a strong comeback and go on to add some
more trophies to her cabinet and will also be looking at
strengthening her chances of participating in the 2020 Tokyo
Olympics and claiming an Olympic gold medal to add to her already
accomplished tennis achievements.

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guide to the subject matter. Specialist advice should be sought
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